State of New Jersey v. Joanne Panico

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.JOANNE PANICO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 21, 2011

Before Judges Axelrad and Sapp-Peterson.

Following the entry of a guilty plea to knowingly operating a motor vehicle while on the revoked list, the municipal court judge imposed enhanced penalties pursuant to N.J.S.A. 39:3-40(f)(2) and sentenced defendant to forty-five days in jail, a two-year loss of driving privileges, and appropriate fines.

Defendant appealed the sentence imposed to the Law Division. Following oral argument, Judge Ronald Reisner issued a written opinion in which he rejected defendant's contention that she was not subject to enhanced sentencing and re-sentenced defendant in accordance with the original sentence imposed by the municipal court judge. The present appeal followed.

On appeal, defendant contends that she is "not subject to the enhanced penalties of N.J.S.A. 39:3-40(f)(2) because at the time of her arrest for driving while suspended . . . [she] had served the determinate seven[-]month license revocation issued by Holmdel Township [Municipal Court] for her refusal conviction." We find no merit to defendant's contention and affirm substantially for the reasons expressed by Judge Reisner in his June 28, 2010 written opinion. We add the following comments.

Defendant does not dispute that her driving privileges were suspended on April 4, 2007, for refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. Nor does she dispute that in addition to the seven-month revocation of her driving privileges and imposition of fines and penalties, she was ordered to attend a twelve-hour Intoxicated Driver Resource Center (IDRC) program. Additionally, it is undisputed the municipal court judge advised defendant at sentencing that if she were "convicted of driving during [the] next seven months, . . . [she] would be looking at up to [ninety] days in jail . . .

[p]lus another one to two[-]year license suspension and fine of $1[]000.

Further, defendant does not dispute that she failed to attend the IDRC over the next several months and that prior to the expiration of the seven-month license revocation imposed by the court, the Motor Vehicle Commission (MVC) issued an Order of Suspension for her failure to attend and complete the IDRC program. Finally, defendant does not dispute that on September 13, 2008, she was stopped and charged with a number of motor vehicle offenses, including knowingly operating her motor vehicle while on the revoked list, and that she pled guilty to this charge before the municipal court judge.

The essence of defendant's argument on appeal is that at the time she was stopped on September 13, 2008, her driving privileges were not suspended for the refusal offense but as a result of an administrative suspension for failure to comply with the IDRC program, and therefore the court's reliance upon State v. Zalta, 217 N.J. Super. 209 (App. Div. 1987), was misplaced. We disagree.

In Zalta, supra, we affirmed the imposition of enhanced penalties where it was "undisputed that [the] defendant never applied for restoration of his driving privileges[.]" Id. at 212. We also concluded that a defendant's license revocation may be continued administratively beyond the determinate period of suspension imposed by the court. Id. at 212-13.

Applying our reasoning in Zalta here, the source of the MVC's authority to continue defendant's license suspension beyond the seven-month period imposed by the court was defendant's non-compliance with the statutory requirement that she participate in the IDRC program by virtue of her conviction for the refusal offense. N.J.S.A. 39:4-50.4a provides, in pertinent part, that "a person whose operator's license is revoked for refusing to submit to a test shall be referred to an [IDRC] . . . and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in [N.J.S.A. 39:4-50.2]." The requirement that defendant participate in the IDRC program is statutorily linked to defendant's refusal conviction. Thus, whether the most recent charge for driving while on the revoked list arose out of defendant's failure to pay the requisite restoration fee or from the continuation of the revocation by the MVC for non-compliance with the IDRC aspect of her sentence is of no consequence. The basis for that part of the sentence requiring her to participate in the IDRC program finds its roots in the refusal conviction.

N.J.S.A. 39:3-40(f)(2) provides that any person under suspension for a violation of N.J.S.A. 39:4-50.4a shall be subject to enhanced penalties, which include an additional period of suspension of "not less than one year or more than two years," and imprisonment in the county jail "for not less than [ten] days or more than [ninety] days." Because defendant's suspension stems from her refusal conviction, the court properly imposed the enhanced penalties.

Finally, we note that although the municipal court judge did not expressly advise defendant of the consequences of non-compliance with all conditions of her sentence beyond the seven-month revocation imposed by the court, there is no dispute that she received notice of the continued suspension prior to the expiration of the seven-month determinate sentence and more than ten months before she was stopped and received the underlying N.J.S.A. 39:3-40 charge. Consequently, there is no basis to reverse the imposition of the enhanced penalty based upon the municipal court judge's failure to advise defendant of the consequences of non-compliance with the IDRC program requirement.

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